In the last two posts, I've been presenting some basic features of hermeneutics, the philosophy of interpretation. The first post explored the contextual nature of meaning and the ambiguity of language the further removed the interpreter is from its original context.
The second post then looked in greater depth at the dynamics of appropriating a text for a different time and place. Some key points from that post included:
- Words are polyvalent. Without context or clarification, they can take on multiple possible meanings.
- The process of canonical collection and consensus formation subtly alters the way a community understands its foundational documents
- Fundamental principles take precedence over any individual passages that might be in tension with them.
1. First, the Constitution differs in some respects from the Bible because 1) it was written to us, 2) it is a legal document, 3) it is one document rather than dozens, and 4) it is much closer to us in time and language.
The Constitution is the fundamental legal document of the United States of America. It applies to the government of this country and its citizens. By contrast, most of the Bible is not legal in genre, and the parts that are related to ancient Israel. In that sense, strangely enough, the Constitution is arguably more direct in its application to those who live here than the Bible.
As a single document, as a legal document, we would expect the Constitution's language to be more precise and less susceptible to tension than the books of the Bible. Further, although vast amounts of change have happened these last two hundred forty-four years, we are significantly closer in culture and, to some extent, worldview than we are to the worlds in which the books of the Bible were written.
In short, these factors suggest a greater directness.
2. Second, the principle of contextual meaning applies to the original meaning of the Constitution, just as to any utterance. These words had a meaning in their original context. There were things in the heads of those who ratified these documents that did not make it to the page itself but were how they understood these words.
So when Justice Thomas invokes questions of whether contemporary conceptions were part of the original meaning of the Constitution, he is asking a meaningful question. Clearly when Thomas Jefferson penned that "all men are created equal" in the Declaration of Independence, he was neither picturing women nor people of color in the statement.
The "right to bear arms" had a meaning in that time and place. It had a meaning in each of the heads of those who ratified the Constitution. That meaning was a function of that time. We can ask questions like, "What were they bearing arms to do?
3. However, as a collectively passed and ratified document, we cannot point to a single authorial intent. As I understand the judicial philosophy of the late Justice Antonin Scalia, originalism was not for him about the original intent of the framers but about the original meaning a common person at the time a law was passed would give it.
On one level, this is a wise distinction. It recognizes, for example, that the various individuals who voted at the constitutional convention may have had conflicting perspectives about the meaning of what they were signing. Indeed, the Federalist Papers and the Declaration of Independence are neither part of the Constitution. Madison's thought can give us important clues to the general sense of the Constitution, but he was only one person. His thought or Jefferson's or Hamilton's cannot determine the specific meaning of the Constitutional text.
4. As a text, the Constitution is polyvalent. Its words are susceptible to multiple possible meanings. As a legal document, its language is tighter than most speech. But we still find plenty of debate over how to apply it.
Much of the debate has to do with what it doesn't say, gaps that contribute to its polyvalence. For example, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Does this statement mean that I should be able to have as many "arms" as I want? Does it apply to people with a criminal record? Does it mean it violates my rights to require a background check or a delay of purchase?
The text doesn't address these questions. Interestingly, with the Bible we sometimes find two approaches to things the Bible doesn't say. The Church of Christ, non-instrumental, would say that if the Bible doesn't mention a particular instrument, it should not be used in church. The Church of Christ, instrumental would say that if a particular instrument is not prohibited in the Bible, it can be used in church.
To some extent, the rulings of the Supreme Court are line calls on the gaps in the Constitutional text. Like applying the Bible to today, situations arise that simply did not exist at the time the Constitution was created. If we take the right to bear arms, the sophistication of modern weaponry goes beyond anything the first Americans could have imagined. Similarly, we can ask whether the very concept of a militia is a bit redundant given the police and the army.
5. In such cases, the Supreme Court has to improvise. It has to discern what the general principles and purposes were, the framework, and extend that trajectory to new situations. No legal system can account for every eventuality. It does no service to the American people for the Supreme Court to take the approach, "If it says nothing specifically, we will say nothing specifically." The job of the Supreme Court is decide cases arising under the Constitution. It is the nature of appropriation to extend the underlying foundational principles to new situations.
Not to do so is to allow situations that violate the spirit of the Constitution to prevail simply because the Constitution does not specifically spell out that situation. Like the Bible, not to make such an extension is to give the upper hand to the forces that are actually against the spirit of the Constitution.
Yes there is an amendment process. This was incredibly wise on the part of the framers. It is good that it is really hard to change the Constitution.
These amendments sometimes have supplemented the Constitution in an important way (e.g., no third presidential term, removal of president). At other times they have corrected flaws in the original framing (giving women and former slaves the right to vote). One might argue that there are times when the trajectory of the Constitution should not be a matter of debate but it is. In such cases, an amendment "seals the deal," so to speak.
6. In my opinion, these dynamics make the accusation of "legislating from the bench" somewhat simplistic. Ideally, an amendment would put all such issues to rest. But filling in blanks as best they can based on the fundamental principles of the Constitution is exactly what the Supreme Court is for.
Take the McCain-Feingold campaign finance act. Its intended purpose was not to limit free speech but to maintain a system where elections could work the way they are supposed to work. An amendment would be helpful, but the Supreme Court would not have been legislating from the bench if they had upheld it, in my opinion.
This brings up another issue not dissimilar to the Bible. The freedoms in the Bill of Rights sometimes come into tension with each other. My religion might lead me to want to shut you up, but you have a freedom of speech. What if my speech were treasonous? Does my speech extend to inciting the overthrow of the government? Line calls must be made because none of these rights are absolute--we have to make exceptions when they crash into each other. We have to decide which takes precedence in that particular situation. The Supreme Court is the place to do it if laws are passed that do not appropriately negotiate these competing values.
7. Lastly, there are consensus understandings that have developed over time, as with the biblical canon. Various rulings of the Supreme Court establish precedent. We call it stare decisis, "decision to stand." It keeps us from constantly reinventing the wheel or constantly jerking back and forth.
This seems a sound practice in general, for the Supreme Court largely to leave previous decisions intact. There have been some great and appropriate reversals. Brown vs. the Board of Education rightly recognized that Plessy vs. Ferguson had done nothing but subvert the fundamental principles of the Constitution with its "separate but equal" concept.
And some rhetoric about "strict constructionism" has hid some not so admirable motives. States rights was not the underlying cause of the Civil War. Rather, it was the way the South tried to perpetuate slavery. Similarly, the concept of states rights around the civil rights movement was really about not wanting to be told to integrate. In these cases, the Supreme Court was rightly enforcing the principles of the Constitution with regard to states that did not want to treat people of color equally.
These decisions brought movement toward fulfilling the fundamental principles of the Constitution. By contrast, Constitutional "fundamentalism" plays to the past deficiencies of American culture in the past. It is like the non-instrumentalists who say, "We can't play those instruments because the Constitution doesn't mention them."
I am suggesting an "appropriation" view. We "work out our Constitution with fear and trembling" in situations the original framers could have never imagined. It is not only a sound hermeneutical perspective. It is the one that leans most toward justice, in my opinion.
1 comment:
Well done. Thank you.
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